Opinion
No. 04-1509.
Filed 20 September 2005.
Mecklenburg County No. 02 CVS 17707.
Appeal by defendants from an order and judgment entered 17 May 2004 by Judge James W. Morgan in Mecklenburg County Superior Court. Heard in the Court of Appeals 9 June 2005.
Defendant U.S.A. Rentals, Inc. is a corporation that leases vehicles to individuals and companies. Defendant Haissam Nashar purchased defendant U.S.A. Rentals, Inc. Prior to selling the business to defendant Nashar in May 2000, defendant U.S.A. Rentals, Inc. had a pre-existing leasing relationship with International Financial Consultants, Inc. ("plaintiff") pursuant to which it would provide vehicles to defendant U.S.A. Rentals, Inc. At the time defendant Nashar purchased defendant U.S.A. Rentals, Inc., there were several outstanding leases. Negotiations between defendant Nashar and plaintiff took place at the close of the purchase of defendant U.S.A. Rentals, Inc. Plaintiff's representative subsequently presented defendant Nashar with a document entitled "Guarantee" [sic] and requested that both defendant Nashar and his wife sign it. Plaintiff and defendant Nashar disagreed as to whether the Guaranty applied only to the existing leases at the time of purchasing defendant U.S.A. Rentals, Inc. or whether the document was a continuing guaranty that applied to both then existing leases and subsequent signed leases. The Guaranty was updated, signed by plaintiff, defendant Nashar, and defendant Nashar's wife, and placed on plaintiff's letterhead, but it did not refer to any future advances. It is unclear from the record whether the updated Guaranty was an effort to resolve plaintiff and defendant Nashar's disagreement over the existing leases at the time of purchasing defendant U.S.A. Rentals, Inc. The leases contained no reference to the Guaranty nor did any of the lessors give notice of acceptance of the Guaranty.
Plaintiff and defendant Nashar continued to do business until May 2002. During this period of time, plaintiff alleged that defendant U.S.A. Rentals, Inc. signed seventy-five leases. Subsequently, defendant U.S.A. Rentals, Inc. was unable to make payments on the leases and plaintiff subsequently determined that defendant U.S.A. Rentals, Inc. owed it eight hundred ninety-eight thousand seven hundred seventy-six thousand dollars and twenty cents ($898,776.20), based on the extent of damage to the vehicles, interest payments, and attorney fees and other costs as provided for in the leases.
On 26 September 2002, plaintiff filed a complaint in Superior Court against defendant Nashar and defendant U.S.A. Rentals, Inc. (collectively "defendants") for breach of contract, conversion, fraud, unfair and deceptive trade practices, breach of fiduciary duty, and demand for immediate delivery of vehicles. On 16 July 2003, the trial court granted defendant Nashar's attorney's motion to withdraw as counsel.
On 4 December 2004, plaintiff filed its motion for summary judgment on all claims. The hearing on the notice of motion and motion for summary judgment was scheduled for 22 January 2004. Prior to the 22 January 2004 hearing, plaintiff withdrew its notice of motion for summary judgment. On 6 April 2004, plaintiff filed a second notice of hearing on motion for summary judgment for 26 April 2004. At the motion hearing, the trial court denied defendant Nashar's request for a continuance in order to obtain counsel.
The trial court's order and judgment entered on 17 May 2004 stated that at no time prior to 16 July 2003 did counsel appear on behalf of defendants. The order further stated that defendant Nashar appeared pro se, he acknowledged receipt of the notices from plaintiff, and that he was aware of the summary judgment hearing. The trial court subsequently granted plaintiff's motion for summary judgment on plaintiff's breach of contract claim and denied plaintiff's motion for summary judgment on their remaining claims. On 17 May 2004, the trial court awarded plaintiff eight hundred ninety-eight seven hundred seventy-six thousand dollars and twenty cents ($898,776.20). Defendants appeal from the trial court's order.
First we must determine whether defendants' assignments of error are properly before this Court. An appeal from an interlocutory order generally is improper. Turner v. Norfolk S. Corp., 137 N.C. App. 138, 141, 526 S.E.2d 666, 669 (2000). "`This rule is grounded in sound policy considerations. Its goal is to "`prevent fragmentary and premature appeals that unnecessarily delay the administration of justice and to ensure that the trial divisions fully and finally dispose of the case before an appeal can be heard.'"'" Arnold v. City of Asheville, ___ N.C. App. ___, ___, 610 S.E.2d 280, 282 (2005) (quoting Evans v. Evans, 158 N.C. App. 533, 534-35, 581 S.E.2d 464, 465 (2003)). An interlocutory order is "one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy." Hinson v. Hinson, 17 N.C. App. 505, 508, 195 S.E.2d 98, 100 (1973). Absent two narrow exceptions, a trial court's order is not proper for immediate appellate review when it is interlocutory in nature.
Pursuant to North Carolina General Statutes, section 1A-1, Rule 54(b) (2003), an interlocutory order may be immediately appealable when the trial court enters a final judgment as to one or more, but fewer than all, claims or parties and the trial court certifies there is not just reason for delaying an appeal. When more than one claim for relief is presented in an action . . . the court may enter a final judgment as to one or more but fewer than all of the claims or parties only if there is no just reason for delay and it is so determined in the judgment. Such judgment shall then be subject to review by appeal or as otherwise provided by these rules or other statutes. In the absence of entry of such a final judgment, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and shall not then be subject to review by appeal or otherwise. . . .
N.C. Gen. Stat. § 1A-1, Rule 54(b).
The second exception to the general rule that interlocutory orders are not immediately appealable is when the appealing party shows that the trial court's interlocutory order would deprive him of a substantial right. N.C. Gen. Stat. § 1-277 and N.C. Gen. Stat. § 7A-27(d)(2003). The appellant carries the burden of showing that there exists "`appropriate grounds for this Court's acceptance of an interlocutory appeal and our Court's responsibility to review those grounds'" Arnold, ___ N.C. App. at ___, 610 S.E.2d at 282 (quoting Romig v. Jefferson-Pilot Life Ins. Co., 132 N.C. App. 682, 685, 513 S.E.2d 598, 600 (1999), aff'd, 351 N.C. 349, 524 S.E.2d 804 (2001)); see N.C.R. App. P. 28(b)(4) (stating that "[w]hen an appeal is interlocutory, the statement [of grounds for appellate review] must contain sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right"); see also Embler v. Embler, 143 N.C. App. 162, 166, 545 S.E.2d 259, 262 (2001). It is well-established that an interlocutory order can be immediately appealable only when there has been a Rule 54(b) certification by the trial court or a substantial right of the appellant has been affected. In the instant case, the trial court did not include a Rule 54(b) certification in the summary judgment order. Therefore, defendants are entitled to pursue their appeal only if it can show a substantial right would be affected absent immediate appeal. "A substantial right is affected when `"(1) the same factual issues would be present in both trials and (2) the possibility of inconsistent verdicts on those issues exists."'" Estate of Redding ex rel. Redding v. Welborn, ___ N.C. App. ___, ___, 612 S.E.2d 664, 668 (2005) (quoting N.C. Dep't of Transp. v. Page, 119 N.C. App. 730, 735-36, 460 S.E.2d 332, 335 (1995)).
"`Whether an interlocutory appeal affects a substantial right is determined on a case by case basis.'" Milton v. Thompson, ___ N.C. App. ___, ___, 611 S.E.2d 474, 476 (2005) (quoting McConnell v. McConnell, 151 N.C. App. 622, 625, 566 S.E.2d 801, 803 (2002)). In support of their allegation that the trial court's order affects a substantial right, defendants' Statement of the Grounds for Appellate Review asserts that they "have suffered imposition of a judgment which interest substantially exceeds a million dollars with the consequential affect on the credit standing and quality of life." Defendants, however, have failed to show this Court how their monetary expense and the possibility of altered quality living affects a substantial right, or in other words, "will potentially result in any harm." Barnes v. St. Rose Church of Christ, 160 N.C. App. 590, 592, 586 S.E.2d 548, 550 (2003).
Generally, the execution of a monetary award on summary judgment affects a substantial right when (1) the cost of staying such execution until an appeal can be timely filed requires substantial expense, or (2) when the payment of the monetary award is due upon entry of the partial summary judgment and prior to the remaining issues being resolved at trial. Wachovia Realty Invs. v. Housing, Inc., 292 N.C. 93, 99-100, 232 S.E.2d 667, 671-72 (1977); Equitable Leasing Corp. v. Myers, 46 N.C. App. 162, 171-72, 265 S.E.2d 240, 247 (1980). In this case, however, defendants make no allegation that staying the execution would cause them to incur a substantial expense nor have they shown that payment of the monetary award is required prior to all remaining issues being properly tried before a jury. Moreover, defendants have failed to set forth any authority to support such a position. Milton, ___ N.C. App. ___, 611 S.E.2d at 476. As this Court recently stated in Johnson v. Lucas, ___ N.C. App. ___, ___, 608 S.E.2d 336, 338 (2005):
It is the appellant's burden to present appropriate grounds for this Court's acceptance of an interlocutory appeal, . . . and not the duty of this Court to construct arguments for or find support for appellant's right to appeal[.]" Thompson v. Norfolk Southern Ry., 140 N.C. App. 115, 121, 535 S.E.2d 397, 401 (2000) (internal citations and quotation marks omitted). Where the appellant fails to carry the burden of making such a showing to the court, the appeal will be dismissed. Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254 (1994).
We further conclude that although there may be some factual issues pertinent to plaintiff's claim for breach of contract similar to those of the remaining claims for relief, there is not a possibility of inconsistent verdicts on those issues. See Green v. Duke Power Co., 305 N.C. 603, 608, 290 S.E.2d 593, 596 (1982) (quoting H. Bryan Ives, Survey of Developments in N.C. Law, 57 N.C.L. Rev. 827, 907-08 (1979) ("`the right to avoid the possibility of two trials on the same issues can be . . . a substantial right.'")).
The trial court granted summary judgment in favor of plaintiff for their first claim for breach of contract against defendants. However, the trial court left open the causes of action for conversion, fraud, unfair and deceptive trade practices, breach of fiduciary duty and claim and delivery. This Court previously has stated that "[a] grant of partial summary judgment, because it does not completely dispose of the case, is an interlocutory order from which there is ordinarily no right of appeal." Liggett Group v. Sunas, 113 N.C. App. 19, 23, 437 S.E.2d 674, 677 (1993). "`There is no more effective way to procrastinate the administration of justice than that of bringing cases to an appellate court piecemeal through the medium of successive appeals from intermediate orders.'" Grant v. Miller, ___ N.C. App. ___, ___, 611 S.E.2d 477, 479 (2005) (quoting Veazey v. Durham, 231 N.C. 357, 363, 57 S.E.2d 377, 382 (1950)).
Accordingly, we hold that the trial court's order granting summary judgment in favor of plaintiffs while leaving several claims still in dispute was interlocutory and not immediately appealable, and that defendants substantial rights will not be impaired absent appellate review and prior to entry of a final judgment.
Appeal dismissed.
Judges HUDSON and STEELMAN concur.
Report per 30(e).